As Romania has developed commercially over the last twenty years changes have become necessary in relation to the enforcement of debts due from companies and individuals. For many Romanian law firms, enforcement and debt recovery have become more important. As a Romanian law firm, we are periodically asked by other law firms outside of Romania as well as locally based clients not only to advise on recovery procedures, but also to take the necessary legal action in Romania.
To deal with this increase in Romanian litigation and to modernize the courts, the New Civil Procedure Code was introduced. As with all laws, after a few years defects were found and amendments have been required. Before anyone makes comments on this we must remember that the American Constitution required amendments very soon after it was signed and adopted.
Law no. 138/14 was therefore introduced to bring in some amendments to the Code. The law was passed by Decree no. 633/2014, which allowed it to be published in the Official Gazette on 16th October 2014.
The law focused in part on amending the chapter regarding the enforcement procedure. The changes eliminate the approval of the enforcement by the Court but instead it is assigned to the bailiffs. Now the responsibility for the issuance of a writ of enforcement has been transferred to the bailiff.
The bailiff now has to decide upon the approval of the enforcement. He will decide within three days of its registration with him whether or not to approve the enforcement. His decision is made without summoning or hearing the parties. A decision rejecting the approval of enforcement may be challenged in court by the creditor within fifteen days from its communication to the creditor. According to the new regulations the court can only settle the challenge made by the creditor to the decision rejecting the approval of enforcement given by the bailiff. The competent court is the local court having jurisdiction over the debtors domicile or registered office, as at the date when the enforcement authority was notified in this respect.
At the same time as the approval of enforcement the creditor can demand that the bailiff uses simultaneously or successively all the enforcement procedures provided for by law including the costs of enforcement. The approval of enforcement is effective throughout the entire country. The enforcement extends to all the writs of execution issued by the bailiff in the enforcement procedure.
Another provision brought by law no. 138/2014 refers to the possibility for the bailiffs to request from third parties, data, information or documents needed to approve the enforcement. Such a request may be addressed to public institutions, financial institutions or any other natural or legal persons who are obliged to notify the bailiff immediately in regard to the documents or the information subject to the protection given by other laws such as the Data Protection law. This power given to the bailiff did not previously exist.
The law also reintroduced the procedure of investing with an executory clause any enforceable titles which are not court decisions. In the case of enforceable titles, other than court decisions, at the request of the creditor or bailiff, the competent court can authorize the entry into the domicile, residence or premises of a person as well as any other place. The court makes its decision in open court with hearing the third party that has the assets or goods. Any decision reached by the court is not subject to any appeal. Arbitration awards must also be subject to enforcement formalities.
The law introduced as well a new obligation that the bailiff must enter the auction of any goods in the electronic register publicizing the sale of assets subject to enforcement. Before the modification of the Code of Civil Procedure the bailiffs did not have such an obligation.
The previous provisions in the Civil Procedure Code which placed more emphasis on the Courts was much lengthier and represented a burden for the courts taking into consideration the increased number of this type of applications. The amendments brought by law no. 138/2014 represent an attempt by the legislators to decrease the number of court approvals of the enforcement applications and to relieve some of the pressures on the courts.
Even though the amendments are shedding light on the legal provision contained in the Code of Civil Procedure there are still aspects than must be clarified and only after a period of time will we be able to see an improvement in the efficiency of the Courts.
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